Excerpt:.....to show that they have been enjoying the suit properties in their own right and adversely to maria susai udayar and his heirs. secondly, the evidence in this case clearly shows that this maria arogyam had got married to maria susai udayar by a schismatic priest in 1905 or 1906: vide ex. but the fact that in spite of diligent search her whereabouts were not known for 10 or 15 years prior to maria susai marrying maria arogyam, clearly shows that it was safe to presume her death. it stands to common sense that when the second wife was equally like the first wife a cousin of maria susai, the entire villagers including the parents of maria arogyam, must have come to this conclusion as otherwise they would not allow a bigamous marriage and the children being bastards. durairaj for the..........ammal, air 1958 mad 463).(11) in this case perianayagam had disappeared for 10 or 15 years before mariasusai contracted a form of marriage with another cousin of his maria arogyam. if perianayagam had not died without leaving any trace normally her relatives would have known about her whereabouts. in these days of postal and telegraphic communications, even if the woman had continued to live in ceylon, her people in the village would have heard of her.but the fact that in spite of diligent search her whereabouts were not known for 10 or 15 years prior to maria susai marrying maria arogyam, clearly shows that it was safe to presume her death. on that conclusion to which maria susai was entitled to come to, he was entitled to look upon himself as a widower and undergo a form of marriage.....

Judgment:

(1) This second appeal is preferred against the decree and judgment of the learned Subordinate Judge of Tiruchirapalli in A. S. No. 201 of 1950, reversing the well-considered judgment of the learned District Munsif of Ariyalur in O. S. No. 434 of 1946.

(2) The short facts are: The plaintiffs who are Christian Udayars have purchased the suit property for Rs.500/- under Ex. A-1 dated 11-11-1942 from the deceased Maria Arogyam and Maria Arogyam's grandson and Sowri Ammal. The case for the plaintiffs is that Maria Arogyam is the lawfully wedded wife of Maria Susai Udayar, that Maria Susai Udayar's divided brother is the first defendant and that Maria Susai Udayar died in or about 1939 surviving him his widow Maria Arogyam, his daughter Sowri Ammal and his so Antoniswami. By 11-11-1942 Antoniswami and his wife had died leaving behind them their son Hirudayaswami.

In the sale deed Ex. A-1 this Hirudayaswami is represented by Maria Arogyam. Subsequently Hirudayaswami also died. The plaintiff's after purchasing these properties have obtained patta for the same. The first defendant Sowrimuthu Udayar and the other defendants, who claim to be the heirs of Maria Susai Udayar, obstructed the plaintiffs and therefore Bandobust petitions were filed in the Deputy Collector's Court, Ariyalur, and subsequently the suit, out of which this second appeal arises, has been filed for recovery of possession and mesne profits.

(3) On the other hand, the first defendant and the other defendants put forward a three-fold contention viz., that Maria Arogyam is not the lawfully wedded wife of Maria Susai Udayar; secondly, that the first defendant and Maria Susai Udayar were undivided and the suit properties were acquired with their joint funds; and thirdly, that the defendants have prescribed title to the suit properties by adverse possession.

(4) The learned District Munsif upheld the contentions of the plaintiffs and decreed the suit. On appeal the learned Subordinate Judge came to a diametrically opposite conclusion and dismissed the suit. Hence this second appeal by the defeated plaintiffs.

(5) Before entering into the really important question viz., whether Maria Arogyam was the legally wedded wife of Maria Susai Udayar or not, we shall dispose of two other points raised. In this case there is no question of joint family and the benefits of survivorship arising therefrom, because the parties are Indian Christians. Turning to the allegation that the suit properties have been acquired with the joint funds of Maria Susai Udayar and the first defendant, there is not a tittle of evidence in support of the same.

The plaintiffs have filed the sale deeds Exs. A-64 to A-70 under which Maria Susai Udayar had purchased properties by himself. Plaintiffs, have also filed pattas Exs. A-2 to A-6 as well as Exs. A-28 to A-37, and rent receipts Exs. A-7 to A-27, A-40 to A-57 and A-59 to A-63, showing that Maria Susai Udayar has been paying kist for the suit lands. The defendants on the other hand have not filed any kist receipts to show that the first defendant was paying any rent for the suit properties during the lifetime of Maria Susai Udayar or after the death of Maria Susai Udayar or after the death of Maria Susai Udayar.

In fact D.W. 1 admits both. The first defendant merely alleged that he had contributed funds towards the purchase of the suit properties but he was not able to lead any evidence to establish the same. Therefore, the learned District Munsif correctly decided that the suit properties belonged exclusively to Maria Susai Udayar.

(6) In regard a acquisition of title by prescription pleaded by the defendants, the evidence on record does not show that the defendants have proved the same. They have not filed pattas and kist receipts or adduced reliable oral evidence to show that they have been enjoying the suit properties in their own right and adversely to Maria Susai Udayar and his heirs.

(7) Therefore, the only point which has got to be considered is whether Maria Arogyam was the lawfully wedded wife of Maria Susai Udayar or not. If she is found to be the lawfully wedded wife, the plaintiffs would get title to the suit properties and if it is found that she was not the lawfully wedded wife of Maria Susai Udayar, the parties being Indian Christians, the defendants would become entitled to the suit properties.

(8) The allegations on which this contention that Maria Arogyam was not the lawfully wedded wife of Maria Susai Udayar is based are two-fold. There is no dispute that Maria Susai Udayar had married one Perianayagam and that that Perianayagam, who was his cousin (senior uncle's daughter) after living with him for 9 to 10 years deserted him and that thereafter in spite of diligent search her whereabouts were not known for 10 or 15 years.

Thereafter Maria Susai Udayar had united himself with Maria Arogyam, another cousin (junior uncle's daughter)--Vide Ex. B-20. See also the testimony of Maria Arokiam as P.W. 1 in C. C. 654 of 42 S. M. Perambalur that she got married to Maria Susai Udayar Ex. B-12. Was this course permissible under Sec. 108 of the Indian Evidence Act? Secondly, the evidence in this case clearly shows that this Maria Arogyam had got married to Maria Susai Udayar by a Schismatic priest in 1905 or 1906: vide Ex. B-20. What are the legal consequences of such a marriage by a Schismatic priest under Canon Law?

(9) There can be no dispute that Maria Susai Udayar and Maria Arogyam were living as husband and wife to the knowledge of the people in the locality and their Christian relatives. Maria Arogyam had borne no less than five children who have been brought up and baptised and married within the Christian fold. On the foot of these facts we have also to examine whether such a union between Maria Susai Udayar and Maria Arogyam could not lead to the presumption set out in Halsbury's Laws of England (Simonds Edition), Vol. 19, page 812.

(10) The principle of Sec. 107 of the Indian Evidence Act is that when once a state of things is shown to exist, there is in law a presumption of its continuance for a period for which such state of things ordinarily lasts. Section 107 of the Evidence Act is merely a deduction from this presumption. If a person is shown to have been alive within 30 years of the date on which the question whether he is alive or dead arises, there is a presumption of his being alive, and the burden of proving that he has died lies on the person who asserts his death. This presumption of his being alive is, however, rebutted if it is shown that he has not been heard of for seven years by those who, if he had been alive, would naturally have heard of him; and, on such proof being given, the burden of proving that he is still alive is, under Sec. 108 of the Act upon him who asserts that he is alive. The presumption under Sec. 108 is as to the fact of death at the time the question is raised and not at any particular antecedent time. There is no presumption also as to the cause and circumstances of the death. (Venkateswaralu v. Bapayya, AIR 1957 AP 380; In re, Seshi Ammal, AIR 1958 Mad 463).

(11) In this case Perianayagam had disappeared for 10 or 15 years before Mariasusai contracted a form of marriage with another cousin of his Maria Arogyam. If Perianayagam had not died without leaving any trace normally her relatives would have known about her whereabouts. In these days of postal and telegraphic communications, even if the woman had continued to live in Ceylon, her people in the village would have heard of her.

But the fact that in spite of diligent search her whereabouts were not known for 10 or 15 years prior to Maria Susai marrying Maria Arogyam, clearly shows that it was safe to presume her death. On that conclusion to which Maria Susai was entitled to come to, he was entitled to look upon himself as a widower and undergo a form of marriage with his other cousin Maria Arogyam. It stands to common sense that when the second wife was equally like the first wife a cousin of Maria Susai, the entire villagers including the parents of Maria Arogyam, must have come to this conclusion as otherwise they would not allow a bigamous marriage and the children being bastards.

This also rules out that Maria Arogyam was the permanently kept concubine of Maria Susai. The close relationship and the fact that these respectable lower middle class Christians would not permit such an irregular liaison are clinching circumstances negativing such a possibility. In fact the children were all baptised and received in the Christian fold and treated as pucca Catholics. Maria Arogyam continued to be a practising Catholic at the time of the trial and her children were all married at Vedavakkam Church as stated by the documentary evidence.

Maria Susai had always treated them as his legitimate children. They were so looked upon by their relatives and neighbours. In these circumstances it is legitimate for us to conclude that this is a case where the presumption under section 108 of the Indian Evidence Act arises and the form of marriage underwent by Maria Susai with Maria Arogyam was not a bigamous one.

(12) Point 2:--In regard to marriages among Indian Christians they are looked at from two standpoints viz, the law of the land and the Canon Law. Both will generally coincide but not necessarily so. In such a case marriage performed according to the law of the land governing the parties will make the marriage valid and the offspring legitimate.

(13) The Christian Marriage Act is a Code repealing and embodying the provisions of several prior Acts which were taken from the numerous English Marriage Acts. The preamble states:

'Whereas it is expedient to consolidate and amend the law relating to the solemnization in India of the marriages of persons professing the Christian religion...........'

Section 4 provides that

'every marriage between persons, one or both of whom is or are a Christian or Chritsians, shall be solemnized in accordance with the provisions of the next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void.' Section 4 provides that

'marriages may be solemnized in India by any of the five different persons, (1) persons who have received ordination, (2) clergymen of the Church of Scotland, (3) Ministers of religion licensed under the Act, (4) Marriage Registrars appointed under the Act, and (5) persons licensed under this Act to grant certificates of marriage between Native Christians.'

But under the Canon Law where Roman Catholic parties are married by Schismatic Priest, that marriage will not be recognised by the Catholic Church. They would look upon such a union as willing more than 'concubinage' and the offspring would be described as illegitimate i.e. not born in holy wedlock state as has been the case here-vide Ex. B19 and B-20. But that would not invalidate the marriage in the eye of the law of the land or make the offspring illegitimate in the eye of the law of the land. But even Canon Law has got important qualifications regarding such marriages which are called putative marriages which will engage my attention later.

(14) I shall now briefly refer to the decisions relied upon by the learned advocate Mr. A. Durairaj for the proposition that the marriage of Maria Susai with Maria Arogyam by a Schismatic Priest was perfectly valid under the Christian Marriage Act and the progeny perfectly legitimate.

In Lopez v. Lopez, ILR 12 Cal 706, it was held:

'Where a man and a woman intend to become husband and wife and a ceremony of marriage is performed between them by a clergyman competent to perform a valid marriage, the presumption in favour of every thing necessary to give validity to such marriage is one of very exceptional strength and, unless rebutted by evidence, strong, distinct, satisfactory and conclusive, must prevail. Piers v. Piers, (1849) 2 HLC 331, followed.

According to the rule of the Church of Rome, a dispensation from the proper ecclesiastical authority is necessary to give validity to a marriage between a man and the sister of his deceased wife.

In this case the parties were Roman Catholics and intended to become husband and wife, and a ceremony of marriage was performed between them by a clergyman competent to perform a valid marriage:' held that the Court was bound to presume that a dispensation necessary to remove the obstacle to the marriage on the ground of affinity had been obtained.'

In Rev. Father Caussavel v. Rev. Saurez, ILR 19 Mad 273, the facts were: S, an Episcopally ordained priest of the Syrian Church under the jurisdiction of the Patriarch of Antioch, solemnized two marriages according to Roman ritual without publishing or causing to be affixed the notices of such marriages required by part III of the Indian Christian Marriage Act. It was proved that S. used the Roman ritual with the sanction of his Bishop who was appointed by the Patriarch

It was held that S, having received Episcopal ordination was authorized to solemnize the marriage according to the rules, rites, ceremonies and customs of his Church and that it was not shown that a marriage solemnized with the Roman ritual under the sanction of the Bishop of the Syrian Church was not solemnized according to the rules, rites, ceremonies and customs of the Syrian Church.

In Kolandaivelu v. J. Degnidt, ILR 40 Mad 1030 : AIR 1918 Mad 601, the meaning of the word 'solemnize' in section 4 of the Christian Marriage Act has been explained and it was held that marriages of Christians with persons who are not Christians must be solemnized in one or other of the manners provided in the Act, that the general effect of the Act is to require that every marriage where one of the parties is a Christian must as a condition of validity be solemnized in one of the prescribed forms, excluding the form prescribed by section 9 unless both the parties are Native Christians and that the Act however is only concerned with the forms in which the marriage is to be solemnized, and does not deal with objections to the validity of the marriage.

In Saldhana v. Saldhana, ILR 54 Bom 288 : AIR 1930 Bom 105, the Bombay High Court had to deal with a civil marriage underwent by persons professing the Roman Catholic faith, and which marriage is not valid under the Canon Law. It was held that a civil marriage contracted before a Registrar in accordance with the provisions of the Indian Christian Marriage Act, 1872, by persons professing roman Catholic faith is valid and legal, however repugnant it may be to the Canon Law of the Church of Rome and that the Act deals with the forms of solemnization of marriages of all Christians in India, including Roman Catholics and that the prohibition contemplated by section 88 of the Act would not extend to a prohibition as to the form of marriage.

In Gokuldas v. John Kantaraj, AIR 1937 Mad 895, the facts were: The parties to a marriage were Indian Christians and were in a position to contract a lawful marriage. The bridegroom took the oath required by section 42 of Christian Marriage Act, and made two false declarations (i) that the bride was of age and (ii) that the parties lived within the district of the Marriage Registrar. As a result of the false declarations, the bridegroom obtained a certificate which entitled them to marry, there being no statement in it showing any lawful impediment to such marriage.

The marriage was solemnized by a Marriage Registrar who was authorised by law in this behalf, in accordance with the provisions of the Act. It was held that the marriage being otherwise valid, the mere fact that the bridegroom induced the Registrar to solemnize the marriage by making false declarations could not render the marriage illegal and void under section 4 of the Act in view of the provisions of section 77 of the Act.

In Gnanasoundari v. Nallathambi, AIR 1945 Mad 516, it was held that a marriage between a Catholic and Protestant solemnized in any of the ways provided by the Indian Christian Marriage Act is not a nullity. ILR 54 Bom 288 : AIR 1930 Bom 105 and ILR 12 Cal 706, were relied on.

(15) But even on the foot that this was not a valid marriage according to the canon Law, if it is a putative or invalid marriage where at least one of the parties was in good faith-in this case it may be safely assumed that both the parties were in good faith--the consequences under the Canon Law are set out in the following standard treatises:

(1) A. H. Van Vliet's Notes on the Canon Law of Christian Marriage at page 8:

'(a) What is putative marriage? (b) attempted marriage?

(a) 'Putative' is an invalid marriage but at least one of the parties is in good faith. Can. 1015, S. 4. It remains putative until both parties know of its nullity.

(b) 'Attempted' is the marriage contracted by those who are aware that they cannot marry.'

* * * * * *

What should be noted a putative marriage?

Children either conceived or born or both of such a marriage are legitimate (Can. 1114. There are two exceptions).

N. B. 1. According to Noldin (III, n. 515) and others the marriage, which is invalid because of lack of the required form, is not to be considered putative even if at least one of the parties was in good faith.

2. Other authors (cfr. Sipos, p. 504, footnote 4) say that even when a marriage is invalid because of defectus formae, it will be putative in case one of the parties was in good faith.

3. Cappello is of opinion that the civil (or before a non-Catholic minister) marriage of a Catholic, who is in good faith owing to his great ignorance, may be per accidents putativum, i.e., if there is really bona fides.'

(2). Augustine's Commentary on the New Code of Canon Law, Book III, Volume V, Fourth Revised Edition, at page 332:

'Taking marriage as the lawful basis and principle, Can. 1114 states that 'those children are legitimate who are conceived or born in valid or putative wedlock'. This law favours the offspring, for it supposes that a child may be legitimate if his parents were married at the time of his birth. But legitimacy always requires a marriage, whether certainly or putatively valid.

A marriage is certainly valid if contracted with out an invalidating impediment and according to the form prescribed by the Church. A putatively valid marriage is one contracted with due observance of the prescribed form, but with an invalidating impediment, the existence of which is unknown to one of the parties. This case, of course, occurred more frequently, the more impediments were set up in course of time.

Hence it was found necessary, since the time of Magister Rolandus, to regard the offspring of such invalid marriages as legitimate. But good faith is strictly required, and is assumed until sentence against the validity is given by competent authority. Hence children born out of such wedlock would be held legitimate even if the ecclesiastical court would afterwards annul the marriage'

(3) Bouscaren and Ellis, Canon Law, Second Revised Edition, page 595:

'CANON-1114. Children who are conceived or born of a valid or putative marriage are legitimate, unless at the time of conception the use of the marriage there-to-fore contracted was forbidden to the parents because of solemn religious profession or the reception of a sacred order.

The Principle of Legitimacy. Putative marriage is defined in canon 1015, S. 4. However, a marriage is usually not regarded as punative if it is invalid for want of form. This apparent limitation on the definition as given in the Code is implied in the older law and has been confirmed by the Code Commission. But it remains true that in special circumstances such a marriage may be putative. If a marriage is either valid or putative, either at the time of conception or at the time of birth, the children are born legitimate, subject to the exception to be stated.'

(4) Woywod and Smith's Practical Commentary on the Code of Canon Law, New and Revised Edition, page 646:

'Matrimonium putativum is an invalid marriage in which at least one of the parties contracted marriage in good faith; it remains putativum until both parties become certain of its invalidity (Canon. 1015).

The terms mentioned in this Canon occur repeatedly throughout the marriage laws of the Code, and one has to refer to this terminology frequently. The Code states that the consummation of marriage is presumed when the parties have been living together after their marriage. The presumption of law has this effect that it puts the burden of proof on the one who denies what the law presumes to have taken place.

Our civil marriage laws agree in this particular with the church law. Canons 1825 to 1828 give the rules governing presumptions in law. The Committee for the Authentic interpretation of the Code declared that a marriage is a matrimonium putativum only when contracted in the proper legal form coram Ecclesia, but is made invalid by an occult impediment unknown to at least one of the parties.....'

(16) The net result of this analysis is that even regarded as a putative marriage, the children born to Maria Susai and Maria Arogyam are legitimate entitled to succeed to the properties of Maria Susai Udayar.

(17) The marriage laws of all civilised countries contain provisions regarding these putative marriages. The exception to section 494 of the Indian Penal Code states:

'This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such marriage shall, before such marriage takes place, inform the person with whom such a marriage is contracted of the real state of facts fo far as the same are within his or her knowledge.'

Section 21 of the Indian Divorce Act states:

'Where a marriage is annulled on the ground that a former husband or wife was living, and it is adjudged that the subsequent marriage was contracted in good faith and with the full belief of the parties that the former husband or wife was dead, or when a marriage is annulled on the ground of insanity, children begotten before the decree is made shall be specified in the decree, and shall be entitled to succeed, in the same manner as legitimate children, to the estate of the parent who at the time of the marriage was competent to contract.'

'Where a decree of nullity is granted in respect of any marriage under section 11 or section 12, any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity:

Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null and void or annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.'

There is a similar provision in Section 26 of the Special Marriage Act, 1954.

(18) Point 3:-Finally, the settled law both in the United Kingdom and in India regarding the presumption and proof of marriage are set out in paragraphs 1323 and 1324 of Volume 19 of Halsbury's Laws of England (Simonds Edition) at page 812:

'1323. Presumption from cohabitation. Where a man and woman have cohabited for such a length of time and in such circumstances as to have acquired the reputation of being man and wife, a lawful marriage between them will generally be presumed, though there may be no positive evidence of any marriage having taken place, and the presumption can be rebutted only by strong and weighty evidence to the contrary.

1324. Presumption of validity. Where there is evidence of a ceremony of marriage having been gone through, followed by the cohabitation of the parties, everything necessary for the validity of the marriage will be presumed, in the absence of decisive evidence to the contrary, even though it may be necessary to presume the grant of a special licence.'

The entire case law has been exhaustively and analytically set out in Corpus Juris of India, Chitaley and Appu Rao's monumental work. The Indian Evidence Act Vol. 6 S. 114 N. 118, Legitimacy and N. 128, Proof of Marriage (ibid).

(20) The facts of this case clearly show that both the presumption and proof laid down in the above extract are applicable here.

(21) Therefore, looked at from any point of view, the conclusions of the learned District Munsif flow from the evidence on record in the light of the discussion of law above and the decree and judgment of the learned Subordinate do not flow from the evidence on record in the light of the discussion of law set out above. The decree and judgment of the learned Subordinate Judge are set aside and the decree and judgment of the learned District Munsif are restored. This second appeal is allowed but in the circumstances without costs. No leave.